Spesard v. Spesard

The opinion of the court was delivered by Graves, J.:

The only question presented in this case relates to the statute of limitations. The plaintiff claims that the note sued on represents the gross sum of $2100, due eleven years after March 1, 1891; that the provision therein for payment in annual instal-ments was designed merely as a convenience for the payors, without being obligatory upon them. It is conceded that under the provisions of the mortgage the whole debt became due on December 21,1897, when default in the payment of that year’s taxes occurred, but it is insisted that the subsequent redemption of the land waived the default and prevented the bar of the statute — that the whole debt therefore became due March 1, 1902, which was less than five years before suit was commenced.

Defendants insist that the default which occurred by the non-payment of taxes could not be waived or set aside without the consent of both parties, and that such consent not having been obtained the whole debt became barred December 20, 1902, more than two years before the suit was commenced.

The court did not adopt either of these theories, and the record does not show upon what conclusions its judgment was based. Apparently, however, it decided that the note, being the principal instrument, controlled, where inconsistent with the mortgage, and held that the note was payable in -annual instalments,- all of which were barred except the last two, for which with interest judgment was rendered for the plaintiff.

A note and the mortgage given to secure its pay *91 ment, when executed at the same time and as parts of the same transaction, constitute the contract between the parties, and must be construed together as one instrument. (Chick and others v. Willetts, 2 Kan. 384; Round, et al. v. Donnel, et al., 5 Kan. 54 ; Muzzy v. Knight, 8 Kan. 456 ; National Bank v. Peck, 8 Kan. 660; Meyer v. Graeber, 19 Kan. 165 .)

In this case the mortgage was executed long after the note was given. Its object, however, was to secure the note. The note was copied in the body of the mortgage and considered and referred to as if executed at that time. The two instruments were adopted by the parties as the contract thereafter existing between them. The execution of the mortgage after the date of the note cannot therefore change the rule above stated.

It has been decided that a clause in such a mortgage providing that the debt secured thereby shall mature immediately upon failure of the mortgagors to pay the taxes on the mortgaged premises when by law they should be paid is valid and enforceable by either party. (Stanclift v. Norton, 11 Kan. 218 ; National Bank v. Peck, 8 Kan. 660 ; Kennedy v. Gibson, 68 Kan. 612, 616 , 75 Pac. 1044 .) The legal effect of a failure to pay taxes as stipulated is to make the whole debt due at once, and this result cannot be waived or changed by either party without the consent of the other. (Stanclift v. Norton, 11 Kan. 218 ; Ellwood v. Wolcott, 32 Kan. 526 , 4 Pac. 1056 ; Snyder v. Miller, 71 Kan. 410 , 80 Pac. 870 , 69 L. R. A. 250.) In the case last cited the foregoing propositions and the authorities relating thereto were fully considered and discussed. The case of Douthitt v. Farrell, 60 Kan. 195 , 56 Pac. 9 , relied upon by plaintiff, depends upon its own facts and is not controlling here.

When the mortgage in this case was executed it, together with the note, constituted the contract between the parties. The failure to pay the subsequent taxes when due and payable caused the whole debt *92 to become due at once. More than five years elapsed afterward before this suit was commenced, and therefore the whole debt was barred by the statute of limitations., The redemption of the land after being sold for these taxes did not waive the default or affect the running of the statute.

The judgment of the district court is reversed, with direction to enter judgment for defendants for costs, and to proceed with the case as may be required by the interests of other parties.